Kalu @ Basant Kumar Vs State of Chhattisgarh

This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) has been filed by the appellant, assailing the legality, validity and judicial propriety of judgment of conviction and order of sentence dated 26.09.2005 passed by the learned Court of Sessions Judge, Dhamtari (C.G.) (for short trial Court) in Session Trial No.08/2004 by which learned trial Court has held the appellant guilty of commission of offence and sentenced as

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described below -

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Conviction	Sentence Awarded
U/s 363 of Indian Penal Code,1860	R.I. for 5 years and fine of Rs. 100/-
(for short IPC).	in default of payment of fine 1
	months Additional R.I.

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R.I. for 5 years and fine of Rs. 100/in default of payment of fine 1 U/s 366 of IPC months Additional R.I.

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The case of the prosecution, in brief, is that on 29.10.2003, the prosecutrix (PW-3), who was a student of Government Middle School, Banspara, was on her way to the said school. At around 12:00 PM, the appellant, without her will and consent, allegedly took her to an unknown place on a motorcycle and proposed marriage to her, but subsequently failed to fulfill the promise. In the said act, co-accused Narendra Kumar is stated to have assisted the appellant. The incident was reported at Police Station – City Kotwali, Dhamtari, whereupon a crime was registered. Upon completion of the investigation, a charge-sheet was filed before the Chief Judicial Magistrate, Dhamtari, who committed the case to the Sessions Court, Raipur (CG) from where it was made over to the concerned trial Court for trial.

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The charge-sheet was filed against two accused persons, namely the present appellant and co-accused Narendra Kumar. Both of them were charged for an offence punishable under Section 363 & 366 of the IPC alternatively under Sections 366/34 & 363/34 of the IPC and they denied the charges and claimed for trial.

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In order to prove its case, prosecution examined as many as 7 witnesses and exhibited 7 documents. The statements of the appellant was recorded under Section 313 of Cr.P.C., wherein they denied the allegations, claimed innocence, and stated that he had been falsely implicated in the case. Upon due appreciation of the evidence available on record, the learned Trial Court found that the age of the prosecutrix PW-3 below 18 years and that she was recovered from the possession of the appellant. Accordingly, the trial Court

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convicted the appellant for the offence punishable under Sections 363 and 366 of IPC and sentenced as mentioned above. However, the co-accused Narendra Kumar was acquitted of the charge under Sections 363 and 366/34 of IPC by the impugned judgment.

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Learned counsel for the appellant vehemently contended that the conviction of the appellant under Sections 366 and 363 of the Indian Penal Code is erroneous, contrary to the evidence brought on record, and unsustainable in law. She submits that the learned trial Court failed to appreciate the evidence in its proper perspective and has erroneously convicted the appellant by misapplying the legal principles. She further submits that the prosecution has failed to establish that the prosecutrix (PW-3) was below 18 years of age and the trial Court wrongly relied upon the transfer certificate (Ex. P/7), as the issuing authority was not examined, nor was the basis for issuance of the said certificate brought on record. The statement of the prosecutrix’s father (PW-2) clearly reflects that even he was unaware of the exact date of birth of the prosecutrix. Additionally, from the statement of the stepmother (PW-1), it is apparent that the prosecutrix was aged more than 20 years at the time of the alleged incident. Referring to the testimony of the prosecutrix (PW-3), learned counsel submitted that she voluntarily accompanied the appellant without any resistance or protest, and there is nothing on record to suggest that she was forcibly taken or subjected to coercion. She further submits that the conviction of the appellant under the aforesaid provisions is legally unsustainable and is liable to be set aside.

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Per contra, learned State counsel submits that the findings recorded by the learned trial Court are based on proper appreciation of evidence and do not warrant any interference by this Court. They further contend that the conclusion regarding the age of the prosecutrix PW-3 is fully justified, based

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on the material brought on record by the prosecution. They submit that the Transfer Certificate (Ex.P/7) has been duly proved and establishes the date of birth of the prosecutrix (PW-3), indicating that she was below 18 years of age at the relevant time. Therefore, the conviction of the appellant is well-founded, and the appeal is liable to be dismissed

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A patient hearing has given to the learned counsel for the parties, records and material available on record is scanned with rapt attention.

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Firstly, this Court would like to deal with regard to the contention of the learned counsel of the appellant that the prosecution was not able to prove the age of the prosecutrix PW-3 beyond reasonable doubt. In order to prove the age, the prosecution basically relied upon two documents, first document is the ‘Transfer Certificate’ Ex. P/7, which is being issued form Municipal Council Primary Girls School, Dhamtari according to this the date of birth of the prosecutrix PW-3 appears to be 11.11.1987. On the basis of this document, her date of birth is recorded in the Dakhil-Kharij register of Primary School, Balodgahan Ex. P/6 (c). In order to prove these documents PW-7 Savita Masih who is a teacher in the Mennonite Primary School, Balodgahan Police Station – Gurur District – Durg (CG) was examined. She in her deposition deposed that she is the officiating Head Mistress of the said school from 01.02.1995. The transfer certificate is Ex. P/7 and on the basis of that transfer certificate, name of the prosecutrix PW-3 was recorded in the admission register and the date of the birth is also entered according to the transfer certificate Ex. P/7 . This is the only deposition given by the PW-7. She in her cross-examination admits that she is not able to tell and to what basis the date of birth of the prosecutrix PW-3 is recorded in the transfer certificate Ex. P/7. She further deposed that in order to ascertain the date of birth, no other documents were demanded by her. She further deposed that she is not in a position to disclose

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as to whether the date of birth is correct or wrong. She deposed that the prosecutrix PW-3 took admission in Class-5, studied there for 9 months and thereafter she went to another school.

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An important question that arises for consideration before this Court is with regard to the evidentiary value of the entry made in the Dakhil-Kharij Register Ex. P/6 (c), which is based on the strength of the Transfer Certificate (Ex. P/7). The said transfer certificate was issued by a school located in Dhamtari, but the prosecution sought to prove its authenticity by examining a witness from a school in Durg. Significantly, the person who actually issued the Transfer Certificate (Ex. P/7) has not been examined by the prosecution. Furthermore, there is no other document on record to indicate the basis on which the entries in the transfer certificate were made.

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PW-2, the father of the prosecutrix (PW-3), deposed with regard to the age of the prosecutrix. In his cross-examination, he stated that he was married approximately 20 years ago, and at the time of his marriage, the mother of the prosecutrix had already passed away. He further stated that the prosecutrix was around 6 years old at the time of his marriage, and also clarified that the prosecutrix is not the biological daughter of his current wife (PW-1). His statement was recorded on 01.04.2004, which implies that if he was married 20 years prior, the marriage took place around 1984–85, and the prosecutrix would have been approximately 6 years old at that time. He further stated that the date of birth of the prosecutrix is 11.11.1987. In paragraph No. 6 of his deposition, he affirmed that PW-1 is his second wife, and the prosecutrix is the daughter from his first marriage. He denied the suggestion that he had been married to PW-1 for 15 years. He admitted that when the prosecutrix was around 2½ years old, he got married to PW-1. However, he denied the suggestion that the marriage to PW-1 took place in 1987–88. He was unable to

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recall the exact date of death of his first wife but denied that she had died in 1985. He admitted that he was married at the age of 20 years, and at the time of his deposition (on 11.04.2004), he was 44 years old. He further stated that one year after his marriage, his elder son was born, and after another 4–5 years, a daughter was born. He also confirmed that the prosecutrix was admitted to school by him. He admitted that at the time of her school admission, he did not produce any birth certificate. However, he denied the suggestion that the prosecutrix was around 20–21 years of age at the time of the incident. From the deposition of this witness, it appears that he was 44 years old when examined on 11.04.2004 and was married at the age of 20. If it is accepted that the prosecutrix PW-3 was born 4–5 years after his marriage, he would have been around 24–25 years old at the time of her birth. Accordingly, the age of the prosecutrix at the time of the incident would likely be in the range of 19–20 years.

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In Birad Mal Singhvi v. Anand Purohit (AIR 1988 SC 1796) the Hon'ble Supreme Court observed in paras-14 and 15 as under:

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“ 14 .....If the entry in the scholar's register regarding date of birth is made On the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs. 8, 9, 10. 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents.....

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15. ...To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and

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thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.…”

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In the case of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584 , relying upon its earlier judgment in the case of Birad Mal Singhvi (supra) , the Hon’ble Supreme Court held as under:-

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“26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."

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In the case of Alamelu and Another vs. State, represented by Inspector of

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Police, (2011) 2 SCC 385 , the Hon'ble Supreme Court held that the transfer certificate which is issued by the government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix PW-3 in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme Court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth was examined. In para 40 and 48 of its judgment, the Hon’ble Supreme Court observed as under:-

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“40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. ……..

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We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi (supra) held as follows:-

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"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article21 of the Constitution, as in that case the accused may unjustly be convicted."

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Therefore, this Court is unable to hold that the prosecutrix was below 18 years of age at the time of the incident. The finding of the learned trial Court in this

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regard appears to be based on an erroneous appreciation of the evidence and is, accordingly, set aside. This Court shall now proceed to examine whether the appellant is the author of the alleged crime.

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PW-1 is the stepmother of the prosecutrix stated that the prosecutrix left for school at around 11:00 AM. When she did not return by 6:00 PM, her husband (PW-2) arrived home, and together they went to the school to inquire about her whereabouts, but found it closed. Thereafter, they inquired with the prosecutrix’s friends, and subsequently, at around 12:00 midnight, a report regarding her missing was lodged with the police. After three days, the prosecutrix was found to have returned to the appellant’s house, which they came to know through the neighbors. Upon being informed, they went to the appellant’s house and again lodged a report at the police station. Six days after the incident, the appellant and the prosecutrix (PW-3) appeared at the police station, and upon being informed by the police, PW-1 and her husband went there and brought the prosecutrix back home. Initially, upon being questioned, the prosecutrix did not disclose anything. This witness (PW-1) was declared hostile and was cross-examined by the prosecution. She admitted that upon inquiry, they came to know that two persons had eloped with the prosecutrix. She also admitted to having given a statement to the police to the effect that the minor prosecutrix was forcibly taken away by the appellant under the pretext of marriage. In her cross-examination, PW-1 stated that three days after the incident, she saw the prosecutrix at Pasand Rao’s house. However, the prosecutrix did not raise any alarm or indicate that she had been forcibly taken by the appellant. PW-1 further admitted that despite seeing her, the prosecutrix did not speak to her deliberately. From this testimony, it appears that although PW-1 initially did not support the prosecution’s case, during her cross-

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examination under Section 154 of the Evidence Act, she affirmed that the prosecutrix was taken away by the appellant and another accused (who has since been acquitted). However, she also deposed that upon seeing the prosecutrix after three days at the appellant’s house, the prosecutrix neither raised any alarm nor spoke to her.

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PW-2 is the father of the prosecutrix, who deposed that after lodging the missing person report regarding the prosecutrix (PW-3), he came to know that she had been brought to the appellant’s house. He further deposed that after 2– 3 days, the appellant and the prosecutrix appeared before the police and surrendered. He deposed that his daughter was handed over to him by the police. He lodged a police report, which has been marked as Ex. P/2. He further deposed that when the prosecutrix returned home, she did not disclose anything about the incident. She has not revealed any details to date and is giving her statements at the instance of others. He also admitted that upon her return, the prosecutrix informed him that no untoward incident had taken place and that no force was used upon her by the appellant. From the testimony of this witness as well, it appears that the prosecutrix (PW-3) did not make any allegation or disclose any incident involving the appellant.

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PW-3, the prosecutrix, deposed in her examination-in-chief that the appellant forcibly took her on a motorcycle under the pretext of marriage. She does not remember where she was taken and stayed there for four days without getting married. Her mother later came to take her home, but she was not allowed to go with her. She deposed that she could not recall the name of the village or city where she had been kept and eventually returned with the appellant. The appellant told her he would take her to court but instead took her to an unknown location, where she stayed with him for two more days before being taken to Dhamtari Police Station and no one else accompanied them. The

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appellant spoke with the police, but she was unaware of the content of their conversation. They reached the police station at around 12:00 pm, and her father came to take her home at about 7:00 pm the same day. She then left with her parents. She further deposed that she does not know where the appellant went afterward. She deposed that she did not recall her exact date of birth but remembered the year of the incident and claimed her age was around 16 years at that time. She deposed that the police questioned both at the police station, and later her statement was recorded in the presence of her parents. Referring to her police statement (Ex. D-1), she expressed her inability to explain how the police recorded it, and she had not made such a statement. She further deposed the appellant had caught her hand, preventing her from going with her mother, and although many people lived near his house, and she shouted when he caught her, she was unable to escape. She further deposed that she went with him on a Hero Honda motorcycle; though her hands, legs, and mouth were not bound, and she was not tied, she did not shout or seek help while passing through crowded areas.

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From the evidence and statements available on record, it is apparent that a missing report was lodged concerning the prosecutrix (PW-3), who had accompanied the appellant on a motorcycle. However, it is significant to note that during this entire course of events, no alarm was raised by the prosecutrix, nor was there any human cry or call for help that would suggest force or coercion. Further, the prosecutrix (PW-3) herself categorically admitted that the appellant had merely made a proposal of marriage and that no physical relationship took place between them during the said period. It is also an undisputed fact that after four days, both the appellant and the prosecutrix voluntarily surrendered before the competent Court without any resistance or intervention. Such conduct of the prosecutrix, viewed in totality, does not

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inspire confidence in the prosecution’s theory of abduction or coercion. Rather, it reflects a consensual act between two individuals, devoid of any elements of criminal intent or compulsion. The absence of resistance, the lack of alarm or complaint during the journey, the failure to escape despite apparent opportunities, and the voluntary surrender before the Court collectively indicate that the essential ingredients constituting an offence under Sections 363 or 366 IPC are not made out beyond reasonable doubt. In criminal jurisprudence, it is a settled principle that the prosecution must prove its case beyond all reasonable doubt. In the present case, the benefit of doubt certainly accrues to the appellant.

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Consequently, the appeal is allowed and the impugned judgment of conviction and sentence passed by the learned trial Court is set aside. The appellant is acquitted from the charge levelled against him. Consequence to follow. The record be sent back with copy of this Judgment forthwith for necessary action and compliance.

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Sd/- Sd/-

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(Sachin Singh Rajput)

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JUDGE

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H.Ansari

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Digitally signed HIFZURRAHMAN byHIFZURRAHMAN ANSARI ANSARI Date: 2025.08.01 17:39:11 +0530

Kalu @ Basant Kumar v. State of Chhattisgarh

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Kalu @ Basant Kumar v. State of Chhattisgarh

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